Two Choice of Forum

A critical decision in transnational commercial deals involves determining where any disputes that arise will be resolved. This chapter reviews and assesses the relative merits of the alternatives, including litigation in domestic courts (with differing national approaches to jurisdiction) or in the relatively new international commercial courts, in international commercial arbitration, in investor-state dispute settlement fora, or in international mediation. It addresses the nature, function, and enforceability of contractual forum selection clauses (including under the 2005 Hague Choice of Court Convention), the problems of parallel proceedings in competing national jurisdictions, and the special challenges of litigating against foreign states and their entities in U.S. courts under the Foreign Sovereign Immunities Act.